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CASE NO.: Appeal (crl.)  801 of 2003

PETITIONER: K. Karunakaran

RESPONDENT: State of Kerala

DATE OF JUDGMENT: 06/12/2006

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J

Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Kerala High Court holding that  since the appellant was not holding office which he allegedly   abused, at the time of taking cognizance, no sanction was  necessary.   

       Primary stand in this appeal is that the view expressed in  R. S. Nayak v. A.R. Antulay (1984 (2) SCC 183) is not correct  and fresh look is necessary as the observations made are per  incuriam. An additional point has been raised that the  prosecution is the outcome of mala fides and varying stands  taken at different stages clearly indicate the fact that the  appellant is the victim  of personal and political rivalry with  leaders of some political parties.  

       Learned counsel for the respondent-State on the other  hand submitted that the decision in R.S. Nayak’s case (supra)  cannot be said to be a case of per incuriam. Additionally, there  is no mala fide involved. It is stated that even if for the sake of  arguments it is conceded but not admitted that political  reasons exist that cannot be a ground to quash the  proceedings. In any event, the circumstances highlighted by  the appellant to substantiate the plea of allegation cannot be  taken note of.  

       The principal stand of the appellant’s arguments  regarding the status on the date of cognizance has been  elaborately dealt with and the decision in Parkash Singh  Badal’s case rendered today (in Criminal Appeal arising out of  SLP (Crl.) 19640 of 2004) rightly accepts his case. The stand in  this regard is clearly without substance.  

The residual question therefore is whether mala fides are  involved.  As is noted in Parkash Singh Badal’s case even  though there is an element of personal or political rivalry, it is  ultimately to be seen whether materials exist to substantiate  the allegations. In that sense it is not the credibility of the  person who makes the allegations but the existence of  materials necessitating investigation which is relevant.  

       To that extent, learned counsel for the respondent-State  is correct. But certain peculiar features exist in this case

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which need consideration.  

       The Chief Secretary of the State on 24.11.2005 has filed  an affidavit stating that the State Government wanted to  withdraw the prosecution and it is not in dispute that the  affidavit was filed with authority. Relevant portion of the  affidavit reads as follows:                 "xx             xx              xx              xx

12.     The allegations that petitioner had  managed to clear the proposals through  the Council of Ministers without any  discussion has no basis. The matter was  approved by the Council of Ministers.

13.     From the foregoing facts it is obvious that  no criminal culpability could be made out  in respect of this deal. As the State  Government did not incur any loss or as  the private party did not make any  unlawful gain, the allegations of criminal  conspiracy or any other irregularity are  not sustainable. Taking all these facts  into consideration the State Government  have decided to move the Court of the  Special Judge & Enquiry Commissioner,  Thiruvananthapuram for withdrawal of  prosecution against all accused in the  case No.CC6/03 charge sheeted based on  the crime case 1/97/SCT u/s 13(2) r/w  Section 13(1)(d) of PCX Act and Section  120B of IPC as provided U/s 321 of  Criminal Procedure Code".   

But interestingly subsequently another affidavit has been filed  stating that there is no intention to withdraw the prosecution.  Learned counsel for the appellant attributes to this  change of stand to the political scenario and the people in  Government.  It is stated that the person who had filed the  application for intervention when the earlier affidavit  proposing withdrawal of prosecution was filed happens to be  the present Chief Minister of the State.  This according to  learned counsel for the appellant is a clear case of political  vendetta.  

Learned counsel for the respondent on the other hand  stated that all relevant facts were not noticed when earlier  petition was filed. Therefore, in essence there is no change in  stand.    These aspects were not before the High Court when the  matter was heard. The relevance of these factors therefore  could not have been considered.  

Therefore, while upholding the order of the High Court to  the extent it hold that the status on the date of taking  cognizance vis-‘-vis the position when the office was allegedly  abused has been rightly decided. We direct the High Court to  consider the matter relating to the plea of mala fides for which  the parties shall be permitted to place relevant materials. The  same shall be done within a period of six weeks. As the matter  is pending since long, we request the High Court to dispose of  the matter within three months from the date on which the  materials are placed by the parties before it. We make it clear

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that we have not expressed any opinion on the said aspect of  the case.   

       The appeal is accordingly disposed of.